Supreme Court New South Wales Medium Neutral Citation: Peta Roberts v Rupert James Moses [2015] NSWSC 1504 Hearing dates: 7, 9 October 2015 Date of orders: 14 October 2015 Decision date: 14 October 2015 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Letters of administration pendente lite granted and maintenance distribution ordered Catchwords: WILLS, PROBATE AND ADMINISTRATION – Family provision and maintenance – Application for interim family provision order – Alternative maintenance distribution – Letters of administration ad colligenda bona defuncti – Succession Act 2006, s 62 – Probate and Administration Act 1898, s 92A Legislation Cited: Civil Procedure Act 1995 (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Cases Cited: Estate of Macdougall [2013] NSWSC 990 McCorquodale v Guth [2008] NSWSC 1420 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Peta Roberts (Plaintiff) Rupert James Moses (First Defendant) Philip Stanley Palmer (Second Defendant) Alexandra Bradley (Third Defendant) Representation: Counsel: M. Meek SC and N. Bilinsky (Plaintiff) C. Harris SC (First and Second Defendants) Alexandra Bradley (in person) Solicitors: Makison d'Apice Lawyers (Plaintiff) Teece Hodgson & Ward (First and Second Defendants) File Number(s): 2015/290712 Publication restriction: No Judgment Summary 1. The late Peter Malcolm Reid ("Mr Reid") died less than six weeks ago, on 29 August 2015. He was 100 years old. By any standards he was a very wealthy man. His estate has a value of at least $52,000,000 (the "Estate"). At the time of his death he was a widower and had never had any children. 2. The plaintiff ("Ms Roberts") is 55 years old. Her father's sister was Mr Reid's late wife. However, Ms Roberts says that her relationship with Mr Reid after her aunt's death was far more than one might expect of a niece. Notwithstanding the difficulty referred to in the next paragraph, Ms Roberts is clearly a beneficiary of the Estate. Ms Roberts was represented by Mr M. Meek of Senior Counsel with Mr N. Bilinsky of Counsel. 3. The first and second defendants (the "Named Executors") are the executors named in Mr Reid's will made on 25 January 2000 (the "Will"). However, the Will is but the first link in a chain of 22 other potentially testamentary documents comprising codicils, statements of wishes and other documents executed (or not) with varying degrees of formality between 2001 and 2014. There will undoubtedly be serious questions as to whether some of those documents should be admitted to probate. Mr C. Harris of Senior Counsel appeared for the Named Executors. 4. The third defendant ("Ms Bradley"), who appeared for herself, informed the Court that she was a friend of Mr Reid's. On 2 October 2015 she filed a caveat against the Estate, claiming an interest under codicils dated 25 May 2007, 19 June 2009 and 3 April 2014. She informed the Court that her interest in the proceedings was to ensure that she was able to protect her position that other potential testamentary documents which could affect what she understood to be her entitlement ought not be admitted to probate. Provided her interests were protected, she informed the Court that she did not oppose Ms Roberts' present application. 5. This matter first came before me in the Duty List after hours on Friday, 2 October 2015. The urgency from Ms Roberts' point of view at that time was a need for funds from the Estate to enable her to finance litigation that the Court was informed was due to be heard in Tasmania on 8 and 9 October 2015. For this reason, the summons was made returnable on 7 October 2015. 6. By the time the matter returned before me for hearing on 7 October 2015, that basis for urgency had been overcome by the Tasmanian proceedings being adjourned to 26 and 27 November 2015. However, the matter still required a urgent hearing in the Duty List because of Ms Roberts' almost complete financial reliance on Mr Reid. 7. The principal relief sought by Ms Roberts in her summons is: 1. An order that special letters of administration ad coligenda bona defuncti be granted to the first and second defendants, being the named executors under the will of the late Peter Malcom Reid (the deceased), for the purpose of getting in the assets of the estate and applying monies from the estate of the deceased to give effect to the relief claimed by the plaintiff in orders 2 and 3 below. 2. An order that further provision be made for the plaintiff's maintenance and advancement in life pursuant to section 59 of the Succession Act 2006 out of the estate or notional estate of the deceased, who died on 29 August 2015. 3. An order that an interim family provision order be made in favour of the plaintiff in the form of a lump sum to be determined by the Court pursuant to section 62 of the Succession Act 2006. 1. The present state of the evidence and the complication presented by the plethora of potential testamentary documents does not permit Ms Roberts' application for an interim family provision order to be determined at this time. However, letters of administration pendente lite will be granted to the Named Executors. In order to meet Ms Roberts' demonstrated urgent financial ends the Court will order the Named Executors, in their capacity as administrators, to make (on terms) an interim distribution to her of $150,000. An interim family provision order – legal principles 1. Ms Roberts' application was brought under s 62 of the Succession Act 2006 (NSW) (the "Act'): 62 Interim family provision orders and orders restraining distribution of the estate (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order. (3) The Court may make an order restraining the final or partial distribution of an estate (other than a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898) pending its determination of an application for a family provision order. 1. Young J (as his Honour then was) considered the predecessor provision under the Family Provision Act 1982 (NSW) (the "FPA") in Young v Salkeld (1985) 4 NSWLR 375. The relevant provisions in s 9 of the FPA were: (5) Subject to the foregoing provisions of this section, the Court may make an interim order for provision under section 7 in favour of an eligible person before it has fully considered the application for that provision where it is of the opinion that no less provision than that proposed to be made by the interim order would be made in favour of the eligible person after full consideration of the application. (6) Where, on an application made in relation to a deceased person, the Court has made an interim order as referred to in subsection (5), it shall, in due course, proceed to make a final determination of the application, which determination shall conform, revoke or alter the order so made. 1. In construing s 9(5) of the FPA, his Honour reached four conclusions (at 380-381): 1. "Thus the duty of the Court on an interim application is to examine what evidentiary material is placed before it, and to assess on that material the probable outcome of the proceedings." 2. "The next problem that raises itself is at what date must the Court assess the chances of the plaintiff's success? … Do I, when considering whether to make an interim order, look at the circumstances as at today's date, or do I look to see what is likely to be position as at the date when the Court makes its final consideration of the matter? In my view, my task is the latter, because the only time when the Court has to be satisfied of the matters set out in s 9(2) is the time of final hearing". 3. "The remaining theoretical problem is whether I am limited to making only such an order as would give the eligible person sufficient moneys to live on pending the hearing of the application, or whether, if I considered it proper, I could go further … In my view, the Court may make any interim order that it considers it is proper to make." 4. "However, in the normal case, although the Court has jurisdiction to make a wider order, it would seem to me that the proper order would be to give the eligible person only such a sum as would deal with real needs pending the hearing and then usually only on terms that the moneys could be recovered if the applicant were unsuccessful … I do not say that the Court could not make an order for a penniless eligible person that she receive either a legacy or a weekly sum for living expenses knowing that all these moneys would be dissipated by the time of the hearing. Indeed, I would consider that would be a perfectly proper order. However, generally speaking, if there is the means of protecting the estate by securing the order in some way, then the interim order might be framed accordingly." 1. The slight differences in drafting between the current and former provisions do not detract from the applicability of his Honour's conclusions. The Court will apply them to s 62 of the Act. 2. One matter which his Honour did not expressly discuss was precisely how the Court goes about the task of determining what ought to be ordered by way of interim family provision. In that regard, "family provision order" where it first appears in s 62(1) of the Act is no less a family provision order as defined in s 3 of the Act to be "an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person". It is only qualified by the word "interim". This has the result that at the time of hearing of the application for an interim family provision order, the Court, acting on the evidence then before it, treats the matter as it would any final application for family provision, but recognising its character as "interim". It is that word which supports Young J's conclusion set out in paragraph [11(4)] above. 3. Bearing in mind both Young J's conclusions and my observations in the preceding paragraph, and putting the matter into my own words, s 62 of the Act on its proper construction invites the Court to consider the following questions: 1. Is the applicant an "eligible person"? 2. If "yes" to the preceding question, will a family provision order be made in favour of the applicant at the final hearing of the application for such an order? This requires the Court, by reference to the evidentiary material then before it, to consider what the Court thinks will be the position as at the date of a notional, future final hearing. The use of the modal or auxiliary "would be" does not mean the applicant must demonstrate an arguable case or a serious question to be tried that the applicant will be entitled to a final order. The Court must be satisfied on the balance of probabilities that the applicant will obtain an order at the final hearing. 3. By reference to the evidentiary material before it as at the date of the hearing for an interim family provision order, what interim order does the Court propose to make, applying the principles that would apply to the making of a final family provision order but recognising its character as interim (the "proposed provision")? 4. Is the Court of the opinion that no less provision than the proposed provision will be made in favour of the eligible person at the final hearing? 1. In relation to the last of the four questions, the statute does not require the Court necessarily to come to a view as to the precise size of the provision which it thinks will be ordered at the final hearing. For the Court to embark on that exercise would be generally undesirable and frequently impossible. That is why, following the general approach recommended by Young J in paragraph [11(4)] above, in the normal course a proper order, given its interim character, would only provide for the eligible person's needs pending the final hearing. In the vast majority of cases, if the Court is of the view that a person will receive provision for their maintenance, education and advancement at the final hearing then the Court should be able to form the requisite opinion without too much difficultly as a matter of simple mathematics. If the eligible person is entitled to something for the rest of their life at the final hearing, then it is difficult to see how it could ever be less than an interim provision intended to meet the eligible person's needs for a period of a few months. This analysis does not require the Court, in most cases, to form a view as to the amount of the probable final provision. However, there may be cases where that will be necessary. The Estate 1. The second defendant, who held a power of attorney for Mr Reid and was closely involved in his business affairs, prepared a statement of assets and liabilities as at 30 June 2014 for Mr Reid (the "Statement") based on his discussions with him, company financial statements and other available records. The Statement was in evidence. 2. The Statement disclosed assets of approximately $69,000,000 and liabilities of approximately $17,000,000 giving a net balance of $52,000,000. It included cash at bank, a mortgage from Roblyn (Tasmania) Pty Ltd valued at $342,000, shares in private companies, apparently unencumbered real estate in Surfers Paradise, the City of Sydney and Point Piper, shares in public companies including 187,702 shares in the National Australia Bank ("NAB") valued at $6,152,871, a motor vehicle, art works and antique furniture and other house contents. 3. There was some evidence tendered which updated the Statement to the date of Mr Reid's death. For present purposes it is only relevant to note that cash at bank as at Mr Reid's death was $214,197.66. Ms Roberts' entitlement from the Estate 1. In contrast to what may be the case for other beneficiaries, Ms Roberts' entitlement under the Will and subsequent codicils is relatively clear in the sense that each of those documents, at least on their face, is a regular testamentary disposition and is likely to be admitted to probate (subject to matters such as proof of authenticity, testamentary capacity or similar questions, it being currently far too early to tell whether any such questions might ever be raised). Mr Harris SC did not dispute the proposition that, on their face, the apparently valid testamentary documents resulted in Ms Roberts being entitled to the following: 1. "All the principal of the money owing to me under the terms of the mortgage loan due to me by Robyln (Tasmania) Pty Ltd and Rolled Metals (Aust) Pty Ltd … together with any other amounts subsequently advanced by me on this mortgage loan". 2. A painting by Arthur Boyd (of which there was evidence of a 2004 valuation of $70,000 -$100,000) and another painting (of which there was no evidence as to its value). 3. A right for her lifetime, or until her marriage, to all of the income from dividends received on "my shares" in the NAB and the Commonwealth Bank of Australia ("CBA") up to a maximum of $500,000 per annum. 4. A right for her lifetime, or until her marriage, to reside in Mr Reid's unit at Wolseley Road, Point Piper including use of all the furniture, furnishings and contents belonging to Mr Reid on terms that all outgoings and expenses in respect of the unit are payable by Ms Roberts. 1. The following comments should be made about these legacies: 1. While it appears from the Statement that Mr Reid's NAB shares were in his name, there was no evidence about the ownership of the CBA shares. The suggestion was made from the bar table that the CBA shares may be owned by a company or trust associated with Mr Reid. If this is the case, it was unclear whether this would defeat Ms Roberts having the benefit of the dividends from those shares. 2. There was no evidence before the Court as to the past dividend performance of NAB or CBA shares nor any evidence as to their possible future performance, other than one document, apparently in the handwriting of the second defendant, headed "Dividends" and next to the date "3.10.13" a reference to "CBA $2.00" and "$992,000". The Court cannot tell, and there is no other evidence to enable it to infer, whether that figure refers to a total annual dividend payment or for some shorter time. 3. Insofar as there is a legacy in relation to the mortgage from Roblyn (Tasmania) Pty Ltd, Ms Roberts' affidavit contained reference to that company "currently returning to voluntary administration or [being] insolvent due to legal costs and the flow of money from [Mr Reid] to me having stopped". There was also evidence that the company was subject to a Deed of Company Arrangement. While referred to in the Statement as having a value of $342,000 there was no evidence as to the current value or "collectability" of the mortgage referred to in the Will. 4. In relation to the right of residence, Ms Roberts wishes to continue to live in Tasmania and does not want to live in Sydney. Ms Roberts and Mr Reid 1. Mr Harris SC submitted that Ms Roberts had not complied with the requirements of the Family Provision Practice Note (Practice Note Number SC Eq7). That is true. Her affidavit, while fulsome, does not contain everything required to be contained in a plaintiff's affidavit in a family provision case. Nor has she filed a notice of eligible persons or an affidavit as to her costs. However, in the circumstances of an urgent application for an interim family provision order the Court will not insist on strict compliance with the practice note. The only question is whether the plaintiff has provided sufficient evidence in support of her immediate claim. 2. Because of the view which I have taken about how the present application should be resolved, it is not necessary for me to set out in the detail that might usually appear in a judgment making a family provision order the matters dealt with by Ms Roberts in her affidavit concerning herself and her relationship with Mr Reid. Instead, I shall summarise her evidence. 3. There was a 45 year difference in age between Ms Roberts and Mr Reid. Mr Reid had never had children but had been married to Ms Roberts' aunt, who predeceased Mr Reid in 1998. 4. Ms Roberts married at 25 and had four daughters between 1983 and 1994. They are all now adults and one of them has two children of her own. Ms Roberts' marriage ended in 1998, after 19 years of marriage. From 2000 to 2008, while living in Tasmania, she was in a business partnership (and for part of that period in a de facto relationship) with a Mr Meidecke. Since the end of that relationship she has been involved in litigation commenced by Mr Meidecke which is referred to in paragraph [5] above. 5. Although Ms Roberts had met Mr Reid prior to 1998, her evidence is that Mr Reid first made an advance towards her at the wake for his late wife (Ms Roberts' aunt). Notwithstanding that she rebuffed his advance, Mr Reid asked Ms Roberts to return to Sydney so he could take her out to dinner. 6. About a month after her aunt's wake, Ms Roberts made her first visit from Tasmania to see Mr Reid. He paid her costs of doing so. Very soon she began to visit Sydney every two to three weeks at the expense of Mr Reid. He would give her $1,000 at each visit and pay for incidentals. She soon began to stay at Mr Reid's apartment and began to occupy her aunt's old room. Mr Reid's residence comprises two adjoining units in Wolseley Road, Point Piper. They began an intimate relationship which continued for many years. The frequency and regularity of Ms Roberts' visits to stay with Mr Reid rapidly increased. At one point in 2000 he increased the amount of money he would give her to $3,000 for each visit. By 2008 she was visiting once a week. From 2012 the visits were twice a week. 7. Ms Roberts quickly came to have a substantial wardrobe and other possessions kept in Mr Reid's apartment in what came to be her room. She used Mr Reid's address as her Sydney address and by 2007 says that she adored Mr Reid and had committed to ensure that "he was safe, happy, comfortable and well". From about 2007 until his death Mr Reid required round the clock nursing care, which Ms Roberts says she organised and, when in Sydney, supervised. 8. During the course of their relationship, Ms Roberts and Mr Reid enjoyed many social occasions together and Ms Roberts says that she was frequently assumed by others to be Mr Reid's wife. 9. Mr Reid's financial generosity to Ms Roberts reflected his great wealth. He took over paying for her daughters' education at Launceston Grammar School. For a number of years for the four girls this involved a total cost of about $50,000 per year. He paid for holidays for Ms Roberts and her daughters. According to her evidence, Ms Roberts gave up much of her own life in order to be with and care for Mr Reid. Without suggesting that it is in any way comprehensive, Ms Roberts provided a table attached to her affidavit which showed that between 2001 and 2011 Mr Reid had given her approximately $1.2 million towards her own expenses and the costs of the property (including making improvements) where she lived in Tasmania. 10. Ms Roberts became completely financially dependent upon Mr Reid's extraordinary largesse. For much of the period of their relationship Mr Reid paid for everything she required. She organised Mr Reid's birthday celebrations, including his 90th and 100th birthdays. All his birthdays were held at his apartment. She helped with the guest lists and she and her daughters arranged the catering. Ms Roberts also says that she assisted with various household duties such as cooking, cleaning, gardening, washing dishes, washing clothing and hanging/ironing washing. The Court infers that those activities diminished somewhat when, towards the end of his life, he had a nurse, a carer and a housekeeper (all full time) attending on him. Ms Roberts' current circumstances 1. Ms Roberts is now 55 years of age, unmarried and unemployed other than working on the hobby farm in Tasmania where she lives. She says she has no savings and no ability to obtain credit but has had to borrow funds from friends and family in the weeks following Mr Reid's death. She has no particular qualifications. 2. Ms Roberts has not enjoyed good health during her life. Her difficulties have resulted in 11 surgeries, including open heart surgery. The main physical challenge facing Ms Roberts is that since 2007 she has been suffering from Parkinson's Disease. Although she is able to take medication which alleviates the obvious tremor and other symptoms for short periods of time, it was obvious to me observing Ms Roberts in the Court and during her brief cross-examination that she is suffering from a significant impairment. 3. Her affidavit evidence in relation to her illness was: 130. While I have been aware of and managing my Parkinson's disease since 2007 and anxiety and depression since 2010, my Parkinson's disease affects my walking, talking, memory, swallowing, voice and it continues to deteriorate gradually, especially during periods of stress and anxiety. I feel contortion in the left side of my face which makes me feel quite inadequate speaking and eating and I am losing the feelings, sensations, strength and mobility down the left side of my body, which has a consistent tremor. 131. The prognosis of Parkinson's disease is bad. I am informed by Dr Susan Tomlinson and I believe that I am on the highest does of prescribed medication that can be prescribed without extreme side-effects, and I need to take the medication every two hours. 132. I am also currently taking anti-depressant medication and take muscle relaxant medication to assist with back and neck pain. 133. I anticipate a time will come when I will need to receive nursing assistance and/or be admitted to a care facility, the degree of care required depending upon my level of functioning. All of this will cost a considerable amount of money, which I currently do not have. 1. Ms Roberts lives on a 70 acre hobby farm in Tasmania which continues to be the subject of litigation with Mr Miedecke. She is a life tenant of that property, which is owned by Roblyn (Tasmania) Pty Limited as trustee of a discretionary trust. However, her tenancy, according to her, requires her to pay $3,000 per week in rent and the other costs of running the property. 2. Ms Roberts' affidavit discloses estimated monthly liabilities and expenses of between $35,000-$40,000. These were met entirely by payments from Mr Reid. That situation of dependency arose very soon after she regularly began to visit Mr Reid and when, as she puts it, her life became totally structured around her relationship with Mr Reid and her frequent visits to Sydney. During Mr Reid's lifetime she was meeting her expenses both from money which he gave her directly and from the free access she had to his credit cards. 3. In addition to what she received from Mr Reid, Ms Roberts receives a disability support pension of $850 per fortnight. Ms Reid informed the Court that she had kept Centrelink informed about the money she received from Mr Reid but that this did not affect her entitlement to a disability pension. The Court was informed that Centrelink has taken the view that what Mr Reid was giving her was to be categorised as gifts. 4. At any final hearing of an application for family provision there are a number of aspects of Ms Roberts' liabilities and expenses which would require closer examination and verification by supporting documentation. Her evidence could be expected to include substantiation of a kind which has not been able to be prepared for an urgent application. Matters requiring further explanation include: 1. Gaining a precise understanding of the arrangements which apply to her occupation of the property in Tasmania and the status of Roblyn (Tasmania) Pty Ltd which is apparently currently subject to a Deed of Company Arrangement. 2. Some items which Ms Roberts has categorised as monthly expenses relate to payments which she makes to some of her daughters. They are all now adults and are either in employment or about to commence employment. The need for such payments would be examined further at any final hearing to ascertain whether they are matters which could properly be taken into account in determining an amount for provision. 3. The costs and financial consequences of Ms Roberts' stated desire to remain on the property. The extent to which her desire to remain on the hobby farm represents, if it be the case, an uneconomic decision may, in the particular circumstances of this case, be a matter which the Court would take into account. 4. Connected with her desire to remain on the hobby farm is the question of whether, because of her deteriorating physical condition, it would be practical for her to remain on the farm in any event. Considerably more evidence would be required as to her prognosis and the likely costs she will incur for future care for any final hearing. 1. Even allowing for all of the uncertainties to which I have just referred, the financial picture which emerges from her affidavit may be summarised as: 1. Personal expenses and funds required to live on and operate the farm are approximately $24,000 per month. 2. She needs to pay her solicitor in her current dispute with Mr Miedeke $30,000 to satisfy outstanding invoices and will have a continuing liability for legal fees in relation to the hearing now scheduled to take place next month. 3. She has approximately $34,000 in credit card debts. 4. She owes $17,000 to one of her daughters and a son-in-law in loans they have made to pay her legal fees. 1. There is one other matter to which reference should be made which adds a further potential complication concerning Ms Roberts' financial position. After the contested hearing of Ms Roberts' application and while the Court's judgment was reserved, her legal advisers caused the matter to be relisted. They acted properly to do so. The purpose of the relisting was to inform the Court that on 16 January 2015 a family trust had been settled on Ms Roberts' instructions with the assistance of her solicitors. Ms Roberts, her children, grandchildren and other family members are the most obvious class of potential beneficiaries of the trust. 2. On the same day that trust was settled, Ms Roberts entered into a deed of assignment by which she assigned to the trustee of the family trust what was described as her "interest in future to receipt of income from the" Estate. Notice of that assignment was never given to Mr Reid. Mr Meek SC informed the Court that his instructions were that, given notice had never been given to Mr Reid, the arrangements would be undone. An affidavit from the trustee was read in which he deposed that he had determined to wind up the trust and to vest all its assets in Ms Roberts. 3. It is important to note that while these trust arrangements raised potential and practical legal difficulties in relation to Ms Roberts' entitlement to receive the income from the NAB and CBA shares, there was no doubt that at the time of the hearing she was a beneficiary of the Estate by reason of the gift of artworks and the right to reside in Mr Reid's unit. Resolution of Ms Roberts' application 1. Mr Harris SC's submissions in opposition to Ms Roberts' application may be summarised as: 1. Ms Roberts is not an eligible person. 2. The Court could not be satisfied that at a final hearing Ms Roberts would receive an order for provision, so the jurisdiction under s 62 of the Act was not engaged. 3. An order for letters of administration of the kind sought by Ms Roberts is only made where there is some danger to the assets in the estate: McCorquodale v Guth (2008) NSWSC 1420; Estate of Macdougall [2013] NSWSC 990. 1. In relation to the question of being an eligible person, Mr Meek SC submitted that, at the very least, Ms Roberts satisfied the definition of an eligible person under s 57(1)(e) of the Act: 57 Eligible persons (1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person: … (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, … 1. He submitted that it was clear that Ms Roberts was wholly dependent on Mr Reid and was a member of his household. There is much force in that submission. However, because of the course which I have ultimately decided to take, I do not propose to make a finding to that effect. However, for present purposes I will assume it in favour of Ms. Roberts. 2. It is at the next stage of the inquiry – whether Ms Roberts would obtain a family provision order at the final hearing of the application – that the Court finds itself unable to go further on the current evidence. 3. In considering whether or not to make a family provision order, among the first matters the Court must determine (see my judgment in West v Mann [2013] NSWSC 1852 at [12]) is what provision has been made for the applicant and, at the time the Court is considering the application, whether that provision is not adequate for the proper maintenance, education or advancement in life of the applicant. In the present case the provision can be identified. However, there is no evidence before the Court as to the likely future value of the dividend income which has been left to Ms Roberts. Added to this is the difficulty surrounding obtaining a proper understanding of Ms Roberts' circumstances, including the matters referred to in paragraph [37] above. 4. Even assuming in Ms Roberts' favour that the Court was of the view, on the material currently before it, that at the time of a final hearing the conclusion would be reached that adequate provision had not been made for her (so that the Court's discretion to make a family provision order in her favour was enlivened), another unusual feature of this case makes the present question difficult to answer. Among the matters listed in s 60 of the Act which the Court may (not must) have regard to in making a family provision order are: 60 Matters to be considered by Court … (2) The following matters may be considered by the Court: … (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, … (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, .. 1. These considerations require the Court to have some understanding of who the other beneficiaries of the Estate are, their circumstances and, if applicable, any claim for family provision by them or other persons. The difficulties thrown up by the numerous purported testamentary instruments prepared by Mr Reid mean the Court cannot, at this early stage, confidently answer the fundamental question of who the other beneficiaries are and to what they might be entitled. This difficulty is not of Ms Roberts' making. 2. The matters raised in paragraphs [46] to [48] above mean that the Court, in the circumstances and on the evidence currently before it, is unable to form a view as to whether a family provision order would be made at any future, final hearing of Ms Roberts' application. The Court will return later in these reasons to the question of how that part of her application should be dealt with. 3. What is clear on the evidence adduced by Ms Roberts is that she was totally financially dependent on Mr Reid. She is undoubtedly a beneficiary of the Estate. The creation (and, apparently, forthcoming termination) of her family trust does not change that conclusion because the trust, for example, did not receive her future interest in the artworks or her right to reside in Mr Reid's Point Piper unit. Furthermore, despite the uncertainties referred to in paragraph [37] above, it is clear that she is in considerable, urgent financial need. In those circumstances, the Court is satisfied that an interim distribution should be made if a proper basis for doing so can be identified. 4. At the outset of the hearing, Mr Meek SC proposed a form of orders which included interim provision of $8,000 per week for Ms Roberts until final determination by the Court of her application for a family provision order and a lump sum payment of $30,000 to meet her current legal costs. Even if I had concluded that the Court should make an order for interim provision under s 62 of the Act, I do not think in the circumstances of this case that anything but an order for a lump sum should be made. The reason for this is because, when the Court does not know when the matter will be finally determined, ordering a weekly payment makes it difficult, if not impossible, for the Court to form the opinion required by s 62 of the Act (see paragraph [14(4)] above). In most, if not all cases, that opinion will not be able to be formed unless the amount proposed for interim provision is a sum certain. 5. The proper basis for present action in favour of Ms Roberts is s 92A of the Probate and Administration Act 1898 (NSW) (the "PAA"): 92A Personal representatives may make maintenance distributions within 30 days (1) This section applies if a person (the "survivor"): (a) survives a deceased person, and (b) at the time of the deceased person's death, was wholly or substantially dependent on the deceased person, and (c) will be entitled to part or all of the deceased person's estate if the person survives the deceased person for 30 days or, if that or another period for survival appears in the will, within the period appearing in the will (the "specified period"). (2) The executor or administrator of the deceased person's estate may make a distribution that is an adequate amount for the proper maintenance, support or education of the survivor at any time after the death of the deceased person, including within 30 days, or the specified period, after the death of the deceased person. (3) The executor or administrator may make the distribution even though the executor or administrator knows, when the distribution is made, of a pending application, or an intended application, for an order under the Family Provision Act 1982 in relation to the deceased person. (4) The executor or administrator is not liable for a distribution under subsection (2) that is made in good faith. (5) An amount distributed under subsection (2) to a survivor must be deducted from any share of the estate to which the survivor becomes entitled. (6) However, if the survivor does not survive the deceased person for 30 days, or the specified period, the distribution is to be treated as an administration expense. (7) An authorised deposit-taking institution does not incur any liability in relation to any transaction concerning an account of the deceased person kept with the institution or with some other financial institution that it is authorised to make by the executor or administrator of the deceased person for the purposes of a distribution under subsection (2). (8) Subsection (7) does not relieve an authorised deposit-taking institution from any liability or obligation it would have apart from that subsection. 1. Ms Roberts satisfies s 92A(1). Once appointed, administrators are subject to the control of the Court. The Named Executors, correctly and sensibly, if I may say so, accepted that they were the logical persons as executors under the Will to be appointed as the administrators if the Court was to grant Ms Roberts some relief. Given her obvious need the Court will grant Ms Roberts relief and will grant special letters of administration to the Named Executors to enable them to give effect to that relief and attend to incidental matters. 2. In granting the Named Executors special letters of administration, the Court does not accept Mr Harris SC's submission that such orders are only made when it is necessary to protect the assets of the estate. To accept that restriction would be an impermissible gloss on the Court's powers. The Court accepts Mr Meek SC's submission that, in this case, s 73 of the PAA applies to give the Court power to appoint administrators: 73 Administration pendente lite and receiver (1) The Court may: (a) pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling, or revoking any probate or any grant of administration, or (b) during a contested right to administration, appoint an administrator of the personal estate and the same or any other person to be receiver of the real estate of any deceased person, with such full or limited powers and with or without a bond or sureties as the Court may think right. (2) The Court may make such orders for the remuneration of such administrator or receiver out of the personal and real estate of the deceased as it may think right. 1. In this case there will be a suit "touching the validity of the will" and "for obtaining .. probate" of such documents as the Named Executors may be advised ought to be the subject of an application for probate in solemn form. The presence of Ms Bradley's caveat fortifies the Court in its conclusion that there is a real possibility that any such suit will be contested. Section 73 is engaged. 2. The Court will accordingly appoint the Named Executors as administrators of the Estate pendente lite. They will be ordered to make a distribution to Ms Roberts pursuant to s 92A(2) of the PAA in the amount of $150,000. That payment should be made as soon as practicable after, and upon the condition that, Ms Roberts provides a suitable deed or other document charging any ultimate legacy she receives from the Estate with the difference between $150,000 and, if it be the case, any lesser amount which she ultimately receives from the Estate including by way of additional provision or otherwise, as well as undertaking to repay any balance if the charge proves insufficient. 3. The Court has concluded that $150,000 is, at least in the first instance, an adequate amount for Ms Roberts' proper maintenance and support undesr s 92A(2) on an interim basis. It will enable her to pay the $30,000 outstanding to her legal advisers in the Tasmanian litigation and provide some assurance of funding for the adjourned hearing in November. It will also provide ongoing funds for Ms Roberts' living and other expenses for a few months, although it may require her to exercise some judgment as to how she chooses to spend it. 4. To avoid any doubt over whether or not a further distribution could be made to Ms Roberts under s 92A of the PAA, the Court will give the administrators an express power to make further advances to Ms Roberts and other beneficiaries on such terms (including as to any security) as the administrators think fit. Over the coming months the value of Ms Roberts' entitlement from the Estate will become clearer. The Court takes judicial notice of the fact that major public companies tend to pay dividends at least twice a year. On the evidence currently before the Court at least the NAB shares appear to be an asset of the Estate. It is likely that dividends will be received from those shares in the next few months. 5. Consistently with the parties' obligations under s 56 of the Civil Procedure Act 1995 (NSW) the Court expects the parties to endeavour to resolve any further requirement that Ms Roberts may have for interim maintenance by reference to the amounts received or to be received from the dividend income which has been left to her. It is difficult to predict when these proceedings will finally be heard, but it will undoubtedly take many months before a final hearing date can be allocated. In those circumstances Ms Roberts may require further assistance from the Estate. 6. The Court does not consider it appropriate to dismiss her application for interim provision. The difficulty which the Court has encountered in determining it is not entirely of her own making. In the exercise of its discretion, the Court declines finally to dispose of her application and will grant her leave to relist it, on motion, before the Family Provision List Judge on the basis that I am not to be considered part heard in the matter. Any further application will be brought on additional, fresh evidence in circumstances where many of the matters which are currently unknown will be better understood by the parties. 7. The parties are to bring in short minutes of order to give effect to these reasons. ********** Amendments 14 October 2015 - No amendment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2015